IN THE HIGH COURT OF SOUTH AFRICA (TRANSVAAL PROVINCIAL DIVISION)

Transcription

1 IN THE HIGH COURT OF SOUTH AFRICA (TRANSVAAL PROVINCIAL DIVISION) UNREPORTABLE Date: 2/2/2006 Case No: 410/2006 In the matter between BAREND CHRISTIAAN NELL Applicant and MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT First Respondent DIRECTOR-GENERAL: DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT Second Respondent JUDGMENT SOUTHWOOD J [1] In 1999 the applicant was employed by the Department of Justice and Constitutional Development ('the Department') as the Senior Deputy Master of the High Court, Transvaal Provincial Division, Pretoria. His employment was governed by the provisions of the Public Service Act 103 of 1994 ('the Act') and the Public Service Staff Code. [2] On 10 November 1999 the applicant received a letter from the Director General of the Department informing the applicant that the Department

2 2 was considering his suspension pending finalisation of misconduct investigation/proceedings because 'there are allegations against you regarding irregularities in the Master's Office, Pretoria, to wit receiving of gifts' The applicant was invited in terms of the rules of Administrative Justice to comment on the 'abovementioned negative remarks' and to submit representations as to why he should not be suspended. These were to be delivered to the Deputy Director-General, Legal Services, by 08:00 on 11 November The applicant was advised that if he failed to reply by then it would be accepted that he did not wish to submit representations. [3] On 11 November 1999 the applicant's attorney, Strydom and Bredenkamp, replied to the Director-General's letter of 10 November 1999 pointing out that the time allowed for the applicant to respond to the Director-General's letter was unreasonably short (less than 24 hours), particularly in view of the lack of detail pertaining to the gifts. Strydom and Bredenkamp requested that full particulars relating to the gifts be furnished to the applicant to enable him to respond and that the applicant be granted a reasonable period of time to furnish written representations. The Director-General did not reply to this letter. [4] On 11 November 1999 the applicant received a further letter from the Director-General informing him that he was suspended, with payment

3 3 of emoluments, with immediate effect, until further notice. The Director-General also instructed the applicant not to interfere with the investigation into the allegations against him, not to 'embezzle'. evidence and not to interfere with any witnesses. [5] There is no suggestion that any progress was made in the investigation of the allegations against the applicant. On 1 December 2000 the applicant commenced proceedings in respect of his suspension in the General Public Service Sectoral Bargaining Council ('GPSSBC'). [6] On 19 April 2001 (Le. some 17 months after his suspension) the Department notified the applicant in terms of clauses 6 and 7 of the New Disciplinary Code and Procedures ('the Disciplinary Code') of a disciplinary hearing to be held on 11 May The misconduct to be investigated was set out in an annexure to the notice. It was alleged that Mr Powell, a liquidator, and other liquidators had paid the applicant or given him benefits for the performance of his duties and that the acceptance of these payments and benefits may be construed as a bribe. The first allegation was that Powell - paid the applicant's Wesbank account in the amount of R (no date or place stated). The second allegation was that during 1998 Powell gave the applicant a pair of binoculars worth R The third allegation was that in 1995 the applicant went on a rugby tour paid for by Powell which cost R The fourth allegation was that in 1999 the applicant went on two hunting trips, one paid for by Corporate Liquidators (Pty) Ltd and one

4 4 paid for by Coopers Trust. In each case it was alleged, in the alternative, that the applicant received the benefit without the written approval of the Department. [7] This notice did not comply with the Disciplinary Code. It did not comply with clause 7(2)(c) which provides that if an employee is suspended as a precautionary measure (i.e. suspended on full pay) the employer must hold a disciplinary hearing within a month and it did not comply with clause 7(1)(c) which provides that the written notice of the disciplinary meeting must provide the main evidence on which the employer will rely. [8] The disciplinary hearing did not take place on 11 May It was. postponed on occasion until a date was arranged for hearing on 4 and 5 October The chairperson was to be Mr Nqadala, a regional court magistrate. On 4 October 2001 the pro forma prosecutor, Mr L.P. Rammuki, an advocate in the office of the Director of Special Operations of the Directorate of Public Prosecutions, withdrew all the charges against the applicant. He did this because of the deficiencies in the notice. [9] After this the Department took no further steps to convene a hearing to investigate the allegations against the applicant and the applicant proceeded with his case in the GPSSBC for an order to uplift the suspension and reinstate the applicant as Senior Deputy Master of the

5 5 High Court, Transvaal Provincial Division. The matter was heard by Adv Moletsane on four days during the period November 2001 to May On 3 June 2002 the arbitrator found in the applicant's favour and made the following orders (1 ) the suspension of the applicant was uplifted with immediate effect; (2) the applicant was unconditionally reinstated in the position in which he was employed on 11 November 1999, retrospectively to 11 November 1999, without loss of benefits, emoluments or status; (3) the first respondent was ordered to pay to the applicant all increases and performance bonuses to which the applicant would have been entitled but for the unfair suspension; (4) the first respondent was ordered to pay the costs in respect of the 19th of November 2001 and 7 May The costs order was made to reflect the arbitrator's displeasure about the conduct of the first respondent's witnesses which caused postponements of the proceedings. In respect of the ih of May 2002

6 6 the arbitrator ordered that the costs be on the scale as between attorney and client. [10] The respondents did not comply with the arbitrator's order. Instead they launched an application to review the arbitrator's decision. To date (Le. 3% years after the arbitrator's decision) this application has not been heard. The respondents have not taken the necessary steps to have the matter heard and they have prevented the applicant from having the matter set down for hearing. When the applicant informed the respondents that he would resume his duties on 10 June 2002 he was immediately informed that he should not do so as the respondent intended to launch review proceedings. [11 ] The respondents took no further steps to have a disciplinary hearing until about 29 November 2004 (Le. about 2% years after the arbitrator's order) when the Department served a further Notice of Disciplinary Meeting on the applicant. It was to be held on 10 December 2004 before Ms 1. Orleyn who was appointed by the Director-General. Once again the notice did not comply with the Disciplinary Code. It was almost five years late, it lacked detail of the misconduct alleged and it did not provide the main evidence on which the Department would rely. [12] At the hearing on 10 December 2004 and 15 April 2005 the applicant raised these issues again. The applicant contended that he would not receive a fair hearing as envisaged in the Constitution, the Labour

7 7 Relations Act and the common law due to the lapse of time since his suspension. Ms Orleyn upheld the applicant's objection regarding the failure to provide the main evidence. She ordered the Department to. furnish the information and postponed the hearing. [13] On 15 September 2005, when the hearing resumed, the applicant again objected to the notice because the prosecutor had failed to remedy the defects in the notice. On 2 November 2005 Ms Orleyn upheld the applicant's objections based on clauses 7(1)(c) and 7(2)(c) of the Disciplinary Code and the delay. She found the proceedings unfair and quashed the charges. [14] On 8 November 2005 the Director-General addressed a letter to Strydom and Bredenkamp informing them that the Department had decided to proceed with a disciplinary hearing against the applicant. On 10 November 2005 Strydom and Bredenkamp replied to this letter and informed the Director-General that the Department was not entitled to proceed with a disciplinary hearing against the applicant in view of Ms Orleyn's findings and that if the Department persisted in having a disciplinary hearing the applicant would seek relief in the High Court. On 15 November 2005 the Director-General responded to this letter from Strydom and Bredenkamp informing them that the Department intended to lodge an application for review in the High Court. By 12 January 2006 when the applicant launched this urgent application no papers had been served on the applicant.

8 8 [15] On 23 December 2005 the applicant received a letter from the Director General notifying him that his employment was terminated with immediate effect.. The letter reads as follows RE: EMPLOYMENT RELATIONSHIP - YOURSELF 1. I was appointed Director-General: Justice and Constitutional Development in the month of June Subsequent to my appointment, I have had the opportunity of reviewing a number of matters in my Department; some required more urgent attention than others. 3. I have carefully considered all the material facts concerning your position before reaching my decision impacting on your future relationship with this Department. (i) Material facts 4. On 11 November 1999, you were relieved of your duties as a senior official in the Master's Office, High Court, Pretoria on the basis that you were suspended on full pay. 5. The main reason why it was considered inappropriate to allow you to continue to perform your functions as Master of the High Court, Pretoria, is the fact that you received a host of gifts from an insolvency practitioner, which gifts you, had not made disclosure. These gifts are the following: 5.1 An amount of R51 842; 5.2 A binoculars worth R8 000; 5.3 A rugby tour valued at R4 975; and 5.4 A hunting trip in the Karoo. 6. It is not disputed that you received these gifts.

9 The object of suspending you, I gather from the papers, was to facilitate a fuller investigation into your conduct and in due course a disciplinary hearing. The disciplinary hearing has not progressed. In my perception, this is because you delayed the process by finding one or other technical point, bearing in mind that whilst you are suspended, you received your full pay and other benefits which make up your remuneration package. On the other hand, I have no doubt that you will contend that the delay was occasioned by factors beyond your control. Be that as it may, I cannot responsibly allow this situation to continue, bearing in mind the interest of your employer, on the one hand, your own interest, on the other hand, and of equal importance the interest of society at large bearing in mind that you are a public official. (ii) FURTHER CONSIDERATIONS TAKEN INTO ACCOUNT IN ARRIVING AT MY DECISION 9. The interest of public administration requires among other things fairness and legality. A public administration cannot operate efficiently and effectively unless its officials are honest, above reproach and reliable In the course of your employment, you accepted gifts which are akin in the context of the party from whom you received these gifts to corrupt payment. It is unacceptable in my respectful view for a senior official in the Master's Office to receive gifts from an insolvency practitioner. In your official duties, you represent the optimum of honesty and reliability. You control, among other things, guardian's funds, welfare of children and other people in need of help, you have a say in the appointment of liquidators and trustees. You conduct and supervise insolvent estates and liquidations in which members of the public and the affected parties such as creditors and employees require you to be impartial and above reproach. By your conduct, you have destroyed this. It is irreconcilable to even contemplate that you can occupy a public office, and your position as senior official in the Master's Office has been compromised by your conduct which is manifestly gross misconduct. Nor have you taken the opportunity since your suspension and in particular since my appointment in my current position, to indicate in particular to me that you

10 ~ 10 appreciate and realise your wrongdoing in particular "the insidiousness of the subtle bribery underlying the ostensible friendship and goodwill associated with such a gift". 12. In Ex parte Tayob & Another 1989 (2) SA 282 (TPD) at 288, his Lordship De Klerk J correctly. summed up the kind of conduct in which you engaged as follows: "Bribery and corruption are offences which attack the framework underpinning an orderly society. It is more odious and more of a threat against a honest, open community than other dishonest misconduct because other dishonest misconduct in general is not an attack against the framework supporting society which may cause it to rot and collapse, but in general only threatens individual members or isolated aspects of society". (iii) CONCLUSION I have considered your personal well being. You have been on full pay since 11 November For six years, the taxpayer has paid you in full for no value received Whatsoever. I have no doubt that during the course of the last six years; you have taken steps to look after yourself. You have done nothing to inculcate a sense of remorse on your behalf. On the contrary, you have employed dilatory tactics to avoid a full ventilation of the nature of your misconduct. This suited you because you received full pay On your own version, you received gifts in your official capacity which is not only unacceptable, but immoral and illegal. There is no justification for a continued employment relationship whatsoever. I accordingly inform you that you are dismissed with immediate effect.' [16] The respondents have not disputed these facts. Mr Simelane, the Director-General, who deposed to the respondents' answering affidavit, neither admits nor denies them and he makes no factual allegations to

11 11 contradict them. It is apparent from Mr Simelane's letter of 20 December 2005 that Mr Simelane accepts that the applicant did receive gifts, that these were corrupt payments and that the applicant. was guilty of 'manifestly gross misconduct'. He also alleges that on the applicant's own version the applicant received gifts which are not only unacceptable, but immoral and illegal. In his affidavit Mr Simelane purports to confirm the contents of his letter. It is clear from Mr Simelane's affidavit that he has no personal knowledge of the facts pertaining to the applicant's alleged misconduct. Mr Simelane was appointed Director-General in June 2005 and before that he was chairperson of the Competition Tribunal. He concedes that he has no firsthand knowledge of the matters raised by the applicant in paragraphs 5-29 of the applicant's founding affidavit. Since the purpose of the disciplinary hearings was to establish the very facts which Mr Simelane apparently now accepts and the hearings have not taken place it is not clear how Mr Simelane could have reached the conclusion which he did. His allegations about the receipt of the gifts and the circumstances in which they were received have not been confirmed by any person who' claims to have personal knowledge of the facts. The respondents have not attached one document which would tend to show the correctness of the allegations. Needless to say, the applicant persists in his denial of any misconduct on his part. [17] On 12 January 2006 the applicant launched this urgent application to review and set aside the decision to dismiss him. The applicant relies

12 12 on the Promotion of Administrative Justice Act 3 of 2000 (PAJA). He contends that the Director-General's decision to dismiss him was administrative action in terms of PAJA which materially and adversely. affected his rights.. He seeks to review the decision in terms of section 6 of PAJA because it was procedurally unfair. It is common cause that the Director-General took the decision to terminate the applicant's employment without informing the applicant that such a decision was being considered or affording the applicant an opportunity to make representations to the Director-General as to why such a decision should not be taken. The applicant relies on the decision in Administrator, Transvaal and Others v Zenzile and Others 1991 (1) SA 21 (A) at where the court said 'One is here concerned not with mere employment under a contract of service between two private individuals, but with a form of employment which invests the employee with a particular status which the law will protect. Here the employer and decisionmaker is a public authority whose decision to dismiss involves an exercise of a public power. The element of public service injected by statute necessarily entails, so I consider, that the respondents were entitled to the benefit of the application of the principles of natural justice before they could be summarily dismissed for misconduct. Where an employee has this protection legal remedies are available to him- to quash a dismissal not carried out in accordance with the principles of natural justice.' In Administrator, Natal and Another v Sibiya and Another 1992 (4) SA 532 (A) at 539C the court said: 'As in the Zenzile case, here too the employer was a public authority whose decision to dismiss involved the exercise of a

13 13 public power. Such a power has to be exercised regularly and in accordance with the principles of natural justice.' [18] The primary, if not the only defence raised in the respondents answering affidavit, is that the High Court has no jurisdiction to hear this matter. It is contended that the dismissal of the applicant by the second respondent on 23 December 2005 was not administrative action in terms of PAJA and accordingly that PAJA does not apply. Therefore, so it is contended, the High Court has no jurisdiction and the applicant's remedies are to be found in the Labour Relations Act 66 of 1995 (LRA). Reference was made to Cape Metropolitan Council v Metro Inspection Services (Western Cape) CC and Others 2001 (3) SA 1013 (SCA); Public Service Association on behalf of Haschke vmec for Agriculture & Others (2004)25 ILJ 1750 (LC) and Greyvenstein v Kommissaris van Suid-Afrikaanse Inkomstediens (2005) 26 ILJ 1395 (T). While accepting the reasoning and conclusion in the Zenzile and Sibiya judgments the respondents' counsel argued that in the light of the Constitution the Zenzile judgment is no longer good law. He argued that the right to lawful, reasonable and procedurally fair administrative action is governed by section 33 of the Constitution and PAJA which was enacted to give effect to that section. The right to fair labour practices is governed by section 23 of the Constitution and the LRA and other statutes which were enacted to give effect to that section. He contended that there is now a clear distinction between administrative law and labour law which is dealt with in the Haschke judgment.

14 14 [19] In my view it is wrong to characterise a matter as a labour dispute or as an administrative law dispute and then decide that the dispute must be. decided in accordance with the relevant body of law. The power of the court to review administrative action flows directly from PAJA and the Constitution itself - see Bato Star Fisheries (Pty) Ltd v Minister of Environmental Affairs & Tourism 2004 (4) SA 490 (CC) at para 22 and the power of the court to review administrative action will depend upon whether PAJA applies to the action concerned. As pointed out in Cape Metropolitan Council v Metro Inspection Services (Western Cape) CC and Others supra at para 16, section 33 of the Constitution is not concerned with every act of administration performed by an organ of State. It is designed to control the conduct of the public administration: i.e. when it exercises public power. In para 17, the court said that whether or not conduct is 'administrative action' would depend on the nature of the powers being exercised and certain other considerations not presently relevant. It is clear from this case and the Zenzile and Sibiya judgments that conduct may constitute administrative action even where it takes place in a contractual context. [20] In Zenzile and Sibiya the court held that the termination of an employee's contract by the state organ concerned involved the exercise of a public power and that their employees were entitled to the application of the principles of natural justice before they could be summarily dismissed for misconduct. The basis of this finding was that

15 15 there was not mere employment under a contract of service between two individuals but a form of contract which invests the employee with a particular status which the law wilt protect. In the present case the 'respondent does not contend that the applicant is not a party to such a contract. It is common cause that he was employed by the Department and is a public servant. [21] Neither the Haschke nor the Greyvenstein judgment assists the respondents. In each case the court was required to decide whether certain conduct constituted administrative action. In the Haschke case the court had to decide whether PAJA applies to decisions given in labour disputes: in casu CCMA rewards and rulings. The court concluded that they did not. In the Greyvenstein case the court had to decide whether PAJA applied to a decision to institute disciplinary proceedings against a SARS employee. The court concluded that it d id not. Neither case dealt with the situation in the present case. Comments made by the courts in those cases must be understood in the context of the issues to be decided. [22] Section 6 of PAJA provides that any person may institute proceedings in a court for the judicial review of an administrative action. The definition of court includes the High Court. 'Administrative action' means inter alia 'any decision taken by a natural person, other than an organ of state, while exercising a public power or performing a public

16 16 function in terms of an empowering provision, which adversely affects the rights of any person and which has a direct, external legal effect'. 'Decision' means any decision of an administrative nature made under an empowering provision. 'Empowering provision' includes a law. [23] The purported dismissal of the applicant by the second respondent was administrative action in terms of PAJA. The decision was of an administrative nature (Mr Simelane was attempting to discharge a public servant) made under an empowering provision (section 17 of the Public Service Act gives the power to discharge on the grounds of misconduct). The decision was taken by a natural person (Mr Simelane) exercising a public power or performing a public function (Zenzile at 34C). It adversely affected the rights of the applicant, purported to have a final effect and affected only the applicant. The action is therefore reviewable in terms of section 6 of P AJA. One of the grounds of review is that the action was procedurally unfair which means that there was no compliance with section 3 of PAJA. Section 3 requires that the person affected must be given adequate notice of the nature and purpose of the proposed administrative action and a reasonable opportunity to make representations. It is common cause that the Director-General did not give the applicant notice of the action he proposed to take or allow the applicant a reasonable opportunity to make representations before he took the decision to terminate the

17 17 applicant's employment. The Director-General's decision must therefore be reviewed and set aside. [24] The respondents attempted to justify the termination of the applicant's employment on the grounds that his misconduct had been established. There are no facts to justify such a contention. As already mentioned Mr Simelane has no personal knowledge of the facts and he is not supported by any witness who has. It is also striking that Mr Simelane did not attach to his affidavit one document which tends to show that the applicant admitted the misconduct which Mr Simelane alleged in his letter dated 20 December The history of the matter tends to support the applicant's contention that the contrary is true. The purpose of the disciplinary hearing was to establish whether or not the applicant was guilty of the misconduct alleged. Despite repeated requests from the applicant the Department was not able to furnish the applicant with the main evidence on which the allegation of misconduct is based. Furthermore the pro forma prosecutor withdrew all the charges against the applicant on 4 October 2001 and two other independent tribunals have ruled against the Department because of the failure to furnish the information. If, for six years, the Department has not been able to furnish the applicant with the main evidence in support of the allegation of misconduct the conclusion is inescapable that the Department has no case. This conclusion is reinforced by the manner in which the respondent has dealt with this application: with bald, vague and unsubstantiated allegations.

18 18 [25] Mr Simelane's contention that the applicant should have taken the opportunity since his suspension and since Mr Simelane's appointment. to indicate to Mr Simelane that he, the applicant, appreciates and realises his wrongdoing and to show remorse begs the question. The applicant denies that he is guilty of misconduct. There is therefore no reason for him to indicate that he appreciates and realises his wrongdoing or show remorse. [26] Mr Simelane's attempt to justify the termination of the applicant's employment on the grounds that the applicant delayed the process is also not borne out by the facts. While it is true that the applicant objected to the Department's failure to furnish details of the evidence against him this view has been upheld by the pro forma prosecutor and the two independent tribunals who have considered the matter. Where the respondents have not agreed with the decisions they have not speedily sought to review them. On the record it appears that if anyone is to blame for the failure to complete the investigation it is the Department. [27] In the notice of motion the applicant seeks an order that the second respondent pay the costs of the application de bonis propriis on an attorney and own client scale. The applicant's counsel asked for the order on the basis set out in paragraph 34 of the founding affidavit: i.e. the applicant's attorney had requested that the Director-General

19 19 immediately reconsider his decision and reinstate the applicant in his position and the Director-General failed to do so. The applicant's counsel did not refer to any authority in support of this claim for costs. [28] In my view, an order of costs de bonis propriis is not appropriate in the present case. The Director-General was not acting in a fiduciary capacity and his conduct in connection with the litigation cannot be found to be mala fide, negligent or unreasonable - see Vermaak's Executor v Vermaak's Heirs 1909 TS 679 at 691: Law of Costs by A.C. Cilliers para However the alternative order for costs on the attorney and client scale is justified. Summarily dismissing the applicant in the context of this case was not justified. Even if the principles of natural justice did not apply the respondents have' not placed any facts on record to substantiate the allegations of gross misconduct which would justify the applicant's dismissal. At common law the purported cancellation would not be upheld. The second respondent obviously wanted to bring finality to the matter but in the light of the history he was obliged to proceed with caution. He should have taken legal advice as to whether he could act in the-way he did and he should have ensured that his allegations of misconduct were supported by the facts. Unfortunately the second respondent did neither and in my view this resulted in unnecessary litigation where the only real 'defence' raised was the objection to the jurisdiction of the court. The respondents' counsel did not attempt to justify the cancellation by reference to the principles of natural justice.

20 . 20 [29] As far as the substantive relief is concerned all that is required is that the dismissal of the' applicant on 20 December 2005 be reviewed and. set aside. Counsel for both parties accepted that the effect of the order will be that the status quo ante will be restored Le. the applicant will be reinstated in the position he occupied on that date. [30] The following order is made: (1 ) The second respondent's decision to dismiss the applicant on 20 December 2005 is reviewed and set aside; (2) The respondents are ordered to pay the costs of this application, jointly and severally, on the scale as between attorney and client. B.R. SOUTHWOOD JUDGE OF THE HIGH COURT

21 -- CASE NO: 410/2006 HEARD ON: FOR THE APPLICANT: ADV. J.G. CILLlERS se INSTRUCTED BY: Mr H Strydom of Strydom & Bredenkamp Attorneys FOR THE RESPONDENT: ADV. N. CASSIM SC ADV.S.M. LEBALA ADV. T. MKHWANAZI INSTRUCTED BY: State Attorney DATE OF JUDGMENT: